Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD207823 Frank A. Brown, Judge.
NARES, J.
A jury convicted Pedro Manzaneras Muñoz of making a criminal threat (Pen. Code, § 422: count 2); possession of a firearm by a felon (§ 12021, subd. (a)(1): count 3); resisting an officer (§ 148, subd. (a)(1): count 4); and giving false information to a peace officer (§ 148.9, subd. (a): count 5). The jury also found true the allegation that Muñoz used a firearm during the commission of count 2 (§ 12022.5, subd. (a)). The court sentenced Muñoz to a state prison term of 13 years.
At the preliminary hearing, counsel confirms that defendant's true name appears on the complaint and states that "[h]is name is Pedro Mansanares Munoz. Mansanares is spelled M A N S A N A R E S." The name on the complaint is "Pedro Manzaneras Munoz." The names on the probation report are "Pedro Munoz" "(RN)", "Pedro Manzaneras Munoz" "(CN)", and "Pedro Munoz Mansanares" "(aka)". The mental competency report is under "Munoz, Cesar aka Manzanarez"; the verdict forms use "Pedro Manzaneras Munoz"; and the abstract of judgment uses "Pedro Munoz" with an aka of "Pedro Munoz Manzanares." In light of these inconsistencies, we will remand the matter to the trial court for a determination of defendant's true name and, if necessary, correction of the abstract of judgment in that regard.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal Muñoz asserts (1) there is no substantial evidence to support his conviction on counts 2 and 3 or on the firearm enhancement, (2) the court erroneously admitted into evidence computer-generated pictures of shotguns, (3) the court erred in allowing a witness to testify concerning threats made by Muñoz's wife, and (4) the court erred in denying his motion for a mistrial after an investigator testified a witness was afraid of Muñoz and told him Muñoz was a violent person.
Muñoz also asserts the court erred by (1) failing to give the jury a unanimity instruction, (2) failing to instruct the jury on voluntary intoxication, (3) failing to instruct the jury on the crime of attempted criminal threat, (4) failing to instruct the jury concerning the prosecution's failure to timely provide discovery, and (5) instructing the jury on flight as showing consciousness of guilt. Finally, Muñoz asserts the prosecutor engaged in misconduct in his closing statement by making improper comments on the evidence, making misstatements of fact, making misstatements of law, inappropriately vouching for the credibility of a witness, and appealing to the fears and emotions of jurors. We affirm.
STATEMENT OF FACTS
On July 14, 2007, Gerardo Quezada and his family were having breakfast at their home in San Diego. Quezada looked outside and saw Muñoz urinating by the trashcans in front of Quezada's house. Quezada went outside and told Muñoz not to urinate in front of his home. Muñoz, who lived in an apartment building in front of Quezada's house, looked at Quezada, grabbed his penis and waved it at Quezada, and then walked away.
On July 16, 2007, at approximately 2:30 or 3:00 p.m., Quezada was resting on his couch when he heard loud noises coming from outside. Muñoz was arguing with Quezada's next door neighbor, Miguel Campos. Quezada heard a lot of curse words. When Quezada went outside to investigate, he saw Muñoz walking down Campos's driveway.
Muñoz turned around and looked at Quezada. Quezada saw a shotgun tucked into the front of Muñoz's pants. Muñoz took the shotgun out of his pants and pointed it at Quezada. Quezada testified he thought Muñoz was trying to scare him, and it worked.
At some point, Quezada's son 17-year-old son Ivan walked out onto their porch. Quezada told Ivan to go back inside. Ivan saw his father and Muñoz arguing. Ivan went outside a second time and saw a gun in Muñoz's pants. Ivan gave varying descriptions of the gun to police, describing it as an AK-47, a shotgun, a handgun, a rifle, and a "mini."
Quezada told Muñoz to leave and that he did not want any problems. Muñoz threatened to kill Quezada and, according to Quezada, said something to the effect of "I have a shotgun and now I have something to kill you with," "now I have something to kill you with," or "I'm going to fucking kill you." Quezada testified Muñoz's actions made him feel "badly," so he told Muñoz to go away and that he was going to call the police.
Muñoz's companion pulled Muñoz toward a pickup truck and signaled Quezada to "please don't" call the police. Muñoz got in the passenger side of the truck and again pointed the gun at Quezada. Muñoz and his companion then drove away. After Muñoz left, Quezada called the police.
Campos testified that before going to Quezada's house, Muñoz showed him the gun, and said that "he [Quezada] was going to pay," and that he "had his eye on somebody." Campos opened the gun and Campos saw two shells in it. Campos thought the gun "looked real." After Muñoz left his house, he saw Muñoz point the shotgun at Quezada. Campos also heard Muñoz threaten Quezada.
At around 10:00 p.m. that night, San Diego police officers set up a perimeter around Muñoz's apartment. Initially, a woman came out of Muñoz's apartment. She failed to comply with officers' commands and went back inside the apartment. A few minutes later, Muñoz came outside. Officers ordered Muñoz to put his hands in the air and walk towards them. Muñoz did not comply. Instead he flailed his arms around and screamed, "Leave me alone."
When the opportunity arose, two officers rushed Muñoz and took him to the ground. Muñoz tried to pull away and resisted officers by flailing his arms and refusing to submit. The officers eventually handcuffed Muñoz. One officer testified that he could smell the odor of alcohol on Muñoz's breath.
Quezada identified Muñoz at a curbside lineup. When police interviewed Quezada immediately after the incident, he was shaking and appeared scared. Quezada told police he thought Muñoz was really going to shoot him.
Police searched Muñoz's apartment and the surrounding area, but did not find a shotgun. After Muñoz was arrested, he gave police a false name. Officers did not discover his true identity until they performed a computer search at the police station.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
The critical inquiry on review of the sufficiency of the evidence is whether the record reasonably supports a finding of guilt beyond a reasonable doubt. "[T]his inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319. fn. omitted; People v. Johnson (1980) 26 Cal.3d 557, 576.) Thus, " ' "[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" (People v. Bean (1988) 46 Cal.3d 919, 933; People v. Stanley (1995) 10 Cal.4th 764, 793.)
Moreover, "[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) Reviewing courts must accord deference to the jury and not substitute its evaluation of a witness's credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
B. Analysis
1. Count 2: criminal threats
Muñoz asserts there is insufficient evidence to support his conviction for making criminal threats because (1) the threats were not unequivocal and credible, (2) he did not intend his statements to convey a threat, and (3) the victim was not put in a legitimate state of fear. These contentions are unavailing.
"Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement... is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his... own safety... shall be punished...." (§ 422.)
"Even an ambiguous statement may be a basis for a violation of section 422." (People v. Butler (2000) 85 Cal.App.4th 745, 753-754.) "[S]ection 422 does not require an unconditional threat of death or great bodily injury." (People v. Bolin (1998) 18 Cal.4th 297, 338, fn. omitted.) Nor does it require communication of "a 'time or precise manner of execution....' " (People v. Butler, supra, 85 Cal.App.4th at p. 752.) "[U]nequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim. The four qualities are simply the factors to be considered in determining whether a threat, considered together with its surrounding circumstances, conveys those impressions to the victim." (People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157-1158.) "A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances." (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) " '[S]ustained'... means a period of time that extends beyond what is momentary, fleeting, or transitory." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Here, the threat was specific and unequivocal. Muñoz pointed a shotgun at Quezada and said he was going to kill him. Contrary to Muñoz's argument, the fact Quezada gave differing accounts of his exact words is of no consequence. Quezada stated that Muñoz made a specific threat by which he conveyed he was going to kill him.
Moreover, there is substantial evidence that Muñoz had the specific intent that his statement be taken as a threat. Two days after a confrontation with Quezada, Muñoz returned to his home with a shotgun and stated he would kill Quezada. Further, prior to making the threat to Quezada, Muñoz showed Campos the gun and indicated Quezada was "going to pay."
In addition, contrary to Muñoz's argument, there was no evidence Muñoz was too intoxicated at the time to form the requisite specific intent. There was no evidence that either before or at the time of the threat he smelled of alcohol, was staggering or slurring his words. The only evidence of Muñoz's intoxication was when he was arrested five hours later. Based upon Muñoz's actions, and the context of the threat, there is sufficient evidence of Muñoz's specific intent.
There is also sufficient evidence of the threat causing "sustained fear" in Quezada. Quezada stated he believed Muñoz was trying to scare him, and it worked. Police observed him shaking and appearing frightened when they interviewed him. Quezada told police he believed Muñoz was going to shoot him. These facts provide substantial evidence of Quezada's sustained fear.
2. Count 3: felon in possession of firearm/personal use of firearm allegation
Muñoz asserts that because the weapon was never found, the evidence did not establish he used an actual weapon as opposed to a replica or toy. This contention is unavailing.
Section 12021, subdivision (a)(1) provides in part, "Any person who has been convicted of a felony... and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony." Section 12022.5, subdivision (a) provides an additional term of 3, 4 or 10 years for "any person who personally uses a firearm in the commission of a felony or attempted felony."
A firearm is defined as "any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion." (§ 12001, subd. (b).) Thus, though a firearm need not be loaded or operable for the crime or enhancement to apply (§ 12022.53, subdivision (b)), use of a replica or toy gun does not support the crime or enhancement. (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras); People v. Jackson (1979) 92 Cal.App.3d 899, 903, fn. 7.)
" 'Whether the defendant... personally used a firearm [is a] factual question[] for the jury's determination.' " (People v. Dominguez (1995) 38 Cal.App.4th 410, 421.) Moreover, "the victim's inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm." (Monjaras, supra, 164 Cal.App.4th at p. 1437.) When no gun is recovered, "[t]he character of the weapon may be shown by circumstantial evidence," such as "testimonial descriptions of the weapon and its role in the commission of the crime." (People v. Hayden (1973) 30 Cal.App.3d 446, 451-452, overruled on other grounds in People v. Rist (1976) 16 Cal.3d 211, 223, fn. 10.)
Monjaras, supra, 164 Cal.App.4th 1432, is instructive. In that case, the defendant confronted a woman "late at night in the lighted parking lot of an apartment complex," said, "Bitch, give me your purse," and "pulled up his shirt and displayed the handle of a black pistol tucked in his waistband." (Id. at p. 1434.) As Muñoz does here, on appeal, the defendant in Monjaras claimed there was insufficient evidence to support his firearm enhancement because there was no proof the firearm was real. (Id. at p. 1435.)
The Court of Appeal rejected this argument, finding the circumstantial evidence of the defendant's own words and conduct provided substantial evidence from which the jury could find the gun was real:
"The pistol tucked into defendant's waistband looked like a firearm, and it in effect communicated that it was a firearm when defendant menacingly displayed it and ordered the victim to give him her purse. While it is conceivable that the pistol was a toy, the jury was entitled to take defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm and that he was prepared to shoot the victim with it if she did not comply with his demand. [Citation.] [¶] Simply stated, when as here a defendant commits a robbery by displaying an object that looks like a gun, the object's appearance and the defendant's conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm.... In other words, the victim's inability to say conclusively that the gun was real and not a toy does not create reasonable doubt, as a matter of law, that the gun was a firearm." (Monjaras, supra, 164 Cal.App.4th at p. 1437.)
Here, there is substantial evidence from which the jury could conclude the gun used by Muñoz was a firearm. Quezada testified Muñoz was holding a shotgun, approximately one foot in length, with two barrels and a light brown handle. Quezada identified People's exhibit No. 2, a photograph of a shotgun, as being similar to the one possessed by Muñoz. Muñoz, when threatening Quezada, said words to the effect of "[n]ow I have something to kill you with." Before he threatened Quezada, Muñoz showed the gun to Campos. Campos stated the gun was similar to People's exhibit No. 2. Muñoz showed him it was loaded, and Quezada believed it was real.
Muñoz focuses upon the fact the witnesses gave varying descriptions of the weapon and the fact Campos identified a defense exhibit, a photograph of a replica shotgun, as looking like the weapon Muñoz used. However, the credibility of the witnesses and any weaknesses in their testimony was an issue the jury decided against Muñoz, and we may not second-guess their determination. Moreover, as detailed, ante, Muñoz's own words and conduct constituted sufficient circumstantial evidence that the shotgun he pointed at Muñoz was real. (Monjaras, supra, 164 Cal.App.4th at p. 1437.)
II. EVIDENTIARY ISSUES
Muñoz asserts the court erred in allowing the People to admit into evidence pictures of shotguns obtained from the Internet. Muñoz also asserts the court erred in allowing Campos to testify regarding threats he received from Muñoz's wife. We reject these contentions.
A. Applicable Legal Principles
"[A]ll relevant evidence is admissible." (Evid. Code, § 351.) A trial court has wide discretion in determining relevance under this standard. (People v. Green (1980) 27 Cal.3d 1, 19, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.) Any ruling by a trial court on the admissibility of evidence will not be disturbed on appeal absent an abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) Similarly, the trial court has discretion to exclude evidence if it determines the prejudicial impact of the evidence outweighs its probative value. (Evid. Code, § 352.) Only on a clear showing of abuse of discretion will an appellate court reverse a trial court's determination under Evidence Code section 352. (People v. Siripongs (1988) 45 Cal.3d 548, 574.)
B. Photographs of Shotguns
1. Background
Prior to trial, the prosecutor explained to the court he intended to show the witnesses two color slides of sawed-off shotguns from images taken from the Internet. He had shown the images to Quezada, who said they were similar in size and type to the actual shotgun possessed by Muñoz. Defense counsel objected under Evidence Code section 352 and stated that one photograph showed a shotgun opened up, with shells in it, but there was no evidence of shells involved,
The court found the probative value of the photograph of the unopened shotgun "significant" and allowed its admission, but excluded the photograph of the opened shotgun pending the witnesses' testimony.
During the direct examination of Campos, the prosecutor requested a sidebar and told the court he wanted to show Campos the photograph of the opened shotgun. Defense counsel again argued the photograph was prejudicial because it showed a shell in the gun. The prosecutor said he planned to ask Campos if the gun was loaded or not because that was an issue in the case. The court allowed the photograph and stated he would make it clear to the jury that the photograph did not depict the actual weapon involved in the case. The court thereafter instructed the jury that the two photographs did not depict the shotgun Muñoz actually possessed and that they were for "demonstrative purposes only."
2. Analysis
Because the shotgun Muñoz used to threaten Quezada was never found, the photographic evidence was probative as demonstrative evidence allowing the witnesses to describe to the jury the type of weapon Muñoz used. Moreover, any potential prejudice was cured by the court's admonition that the pictures did not represent the actual weapon Muñoz possessed. Any potential prejudice was also cured by the court allowing defense counsel to use a picture of a replica of a shotgun to attempt to cross-examine Campos in an attempt to establish he could not tell if the gun was real or not. Thus, the court did not abuse its substantial discretion in determining the probative value of the photographs outweighed any possible prejudice.
C. Testimony re Threats by Muñoz's Wife
Muñoz asserts the court's admission of evidence concerning threats made by Muñoz's wife was erroneous because it constituted inadmissible hearsay and violated his right to confrontation and a fair trial. We first conclude any claimed constitutional error has been forfeited due to Muñoz's failure to raise such alleged error at trial. We further conclude the court did not err in allowing the evidence of threats made by Muñoz's wife.
1. Background
At trial, Campos denied seeing Muñoz argue with Quezada and denied that he told the prosecutor's investigator that he saw that occur. The prosecutor then asked Campos, "You['re] scared to be here aren't you?" and "You were visited by [Muñoz's] wife last week, weren't you?" Defense counsel objected to the question, and the court sustained the objection. The prosecutor requested a sidebar, and a chambers conference was held.
In chambers, the prosecutor told the court Campos had previously told his investigator he saw and heard an argument between Muñoz and Quezada. The prosecutor further told the court Campos was visited by Muñoz's wife, who threatened him, indicating Muñoz "has a lot of family here from the south that is going to come and get you if you testify," The court indicated that because there was no evidence that Muñoz's wife's actions were tied to Muñoz, as opposed to her acting on her own accord, the prosecutor could not ask Campos what Muñoz's wife said to him because the testimony would be unduly prejudicial. However, the court allowed the prosecutor to ask Campos if he was afraid to testify and also allowed the investigator to testify that Campos called him and told him he was afraid to testify.
Following the chambers conference the prosecutor asked Campos if he told the investigator he was afraid to testify. Campos stated that he did. He also testified that he told the investigator about seeing Quezada with Muñoz. However, he denied that he saw Muñoz point a gun at Quezada.
The following day the prosecutor again argued for admitting testimony from Campos that Muñoz's wife threatened Campos. Over defense counsel's objection on grounds of relevance and undue prejudice under Evidence Code section 352, the trial court reconsidered its previous ruling and ruled the testimony was admissible. The court found it was relevant to explain why Campos told the investigator he saw Muñoz point a gun at Quezada, but denied that in his testimony in court. The court further found a limiting instruction would cure any prejudice to Muñoz.
The prosecutor then asked Campos about Muñoz's wife's visit to his house shortly before trial. Campos testified that she first offered him money "keep quiet about... her husband" and, when he declined, she threatened him. He testified he told the prosecution's investigator she said Muñoz had many family members that would be coming to court from "down south," which he took to be a threat that they would "get" him during or after the trial. Campos admitted he told the investigator he was afraid to testify and did not want to get involved. Campos then initially denied again seeing Muñoz pull out the shotgun and point it at Quezada, but finally admitted he did see him do so.
Thereafter, the court gave the jury an instruction that it was to consider the testimony regarding what Muñoz's wife said to Campos for the limited purpose of its impact on Campos's testimony and that the jury was not to use that testimony against Muñoz.
2. Forfeiture
A " ' "failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable. [Citation.]' [Citation.]" (People v. Partida (2005)37 Cal.4th 428, 433-434.) " 'To require this is simply a matter of fairness and justice, in order that cases may be tried on their merits. Had attention been called directly in the court below to the particular objection which it is now claimed the general objection of appellant presented, that court would have had a concrete legal proposition to pass on, and counsel for plaintiff would have been advised directly what the particular complaint against the question was, and, if he deemed it tenable, could have withdrawn the inquiry or reframed his question to obviate the particular objection. Trial judges are not supposed to have the numerous, varied, and complex rules governing the admissibility of evidence so completely in mind and of such ready application that under an omnivagant objection to a question they can apply with legal accuracy some particular principle of law which the objection does not specifically present.' [Citations.]" (Id. at p. 434.)
"Wandering anywhere and everywhere." (Webster's Rev. Unabridged Dict. (1996) [as of May 1, 2009].)
Here, while Muñoz objected to the testimony concerning Muñoz's wife's threats under Evidence Code section 352, he did not object on any constitutional grounds. Accordingly, his constitutional claims are forfeited. Further, to the extent these claims were adequately preserved for appeal, they lack merit.
3. Merits
Evidence that a witness is afraid to testify or fears retaliation is relevant to the witness's credibility. (Evid. Code, § 780; People v. Gonzalez (2006) 38 Cal.4th 932, 946.) An explanation of the basis for the witness's fear is likewise relevant to the witness's credibility and, thus, admissible. (People v. Burgener (2003) 29 Cal.4th 833, 869.) Thus, Campos's testimony concerning the threats was relevant to his state of mind and credibility. The testimony was admissible to show why his testimony at trial differed from what he told the prosecution's investigator.
Further, the evidence was not inadmissible hearsay. To constitute hearsay, the statement must be "offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Campos's testimony was offered for the nonhearsay purpose of explaining why his testimony differed from what he told the investigator. The testimony was to show his state of mind, which rendered it not hearsay. (People v. Guerra, supra, 37 Cal.4th at pp. 1140-1141.)
Further, it does not matter that there was no showing Muñoz was linked to the threat: "[I]t is not necessary to show the witness's fear of retaliation is 'directly linked' to the defendant for the threat to be admissible. [Citation.] It is not necessarily the source of the threat─but its existence─that is relevant to the witness's credibility." (People v. Burgener, supra, 29 Cal.4th at pp. 869-870; see also People v. Earp (1999) 20 Cal.4th 826, 877 [evidence of third-party bribery attempt relevant to witness's credibility].)
Nor does Campos's testimony violate the confrontation clause of the Sixth Amendment as stated by the United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36. As the high court in Crawford explained, the Sixth Amendment "applies to 'witnesses' against the accused─in other words, those who 'bear testimony.' [Citation.] 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Id. at p. 51.) For this reason, the Sixth Amendment applies only to "testimonial evidence." (Id. at p. 68.) Nontestimonial hearsay does not implicate the Sixth Amendment. (Ibid.)
Thus, because the statements by Muñoz's wife were nontestimonial and came within an exception to the hearsay rule, Campos's testimony did not violate the confrontation clause.
III. MISTRIAL MOTION
Muñoz asserts the court erred in failing to grant his motion for mistrial after the prosecution's investigator testified Campos was afraid of Muñoz and told him Muñoz was a violent person. We reject this contention.
A. Background
During the prosecutor's examination of investigator Robert Lobato, the following exchange occurred:
"[The prosecutor]: Is it fair to say that I think everyone assumes a gun is loaded, by the way the defendant, by the way Mr. Campos was describing the gun?
"[Lobato]: Yeah. That and the fact that he was, Mr. Campos was so afraid of the defendant. He said he's a violent person." (Italics added.)
Defense counsel objected and requested a sidebar. The court sustained the objection to the last remark and admonished the jury to disregard it. A chambers conference was then held where the court heard Muñoz's motion for mistrial on the basis the remark constituted prejudicial evidence of Muñoz's bad character. The prosecutor explained that it was an innocent mistake by Lobato, and it could be corrected with an instruction. The court denied the motion, finding that the remark did not warrant a mistrial, given all the evidence and the court's instructions to the jury. The court indicated it would give the jury a further instruction upon defense counsel's request.
When trial resumed, the court told the jury to ignore the last statement made by Lobato and not to let it enter their deliberations in any way. The court then asked if all the jurors could follow that instruction. The jurors all agreed they would not let it enter their deliberations.
At the close of evidence Muñoz renewed his motion for mistrial. The court again denied the motion. In doing so the court made the following findings:
"[I] just don't think that one word or two, whatever it was, the short phrase in this case given all the facts and all the circumstances that the jury heard about urinating, the fallout from that, and the showing of the gun and the state of the evidence and as far as there being shotgun shells in the gun. [¶] If you take a look at all of the remarks [it] just isn't glaring and I think the other facts in evidence are such that they can ignore that characterization by the [district attorney] investigator of what Mr. Campos said."
B. Analysis
"A motion for mistrial is directed to the sound discretion of the trial court. [The Supreme Court has] explained that '[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' " (People v. Jenkins (2000) 22 Cal.4th 900, 985-986; see People v. Cox (2003) 30 Cal.4th 916, 953.)
A witness's volunteered statement can form the basis of a finding of incurable prejudice. (People v. Williams (1997) 16 Cal.4th 153, 211.) However, the court did not abuse its discretion in this case in finding there was not incurable prejudice in this case.
While it is undisputed the investigator's statement regarding Muñoz's propensity for violence was improper, it was brief and not unduly prejudicial considering the overwhelming evidence of Muñoz's guilt. (People v. Earp, supra, 20 Cal.4th at pp. 857-858.) Further, the court immediately admonished the jury to disregard the statement and instructed them they were not to consider it when assessing the case. We presume the jury followed the trial court's admonition to disregard this evidence. (People v. Burgener, supra, 29 Cal.4th at p. 870.) The record in this case "demonstrates the absence of any incurable prejudice of the sort that would require the granting of a motion for mistrial." (People v. Jenkins, supra, 22 Cal.4th at p. 986.)
IV. JURY INSTRUCTIONS
Muñoz makes several claims of instructional error. As will be discussed in more detail, post, these contentions are unavailing.
A. Unanimity Instruction
Muñoz asserts the court erred by failing to sua sponte give a unanimity instruction as there were several actions by Muñoz that could be considered a criminal threat. We reject this contention.
1. Background
While the jury was deliberating, defense counsel told the court he believed the jury should have been given a unanimity instruction because the prosecution did not elect a particular threat, and there were several different actions by Muñoz that could constitute a criminal threat. Defense counsel argued that there were various statements attributed to Muñoz: "I have got something to take you on with," I'm going to kill you," and, "I'm going to fucking kill you" The prosecution responded that the threat was one act, on one occasion, so a unanimity instruction was unnecessary.
The court agreed with the prosecutor, finding that although different witnesses heard Muñoz say different things, there was only one threat:
"The thing is different people hear and see things differently. I have already told them if it's not verbatim, in quotes by each witness, that's a question of fact that they have to make. There's only one incident and one sentence, however it was relayed in the courtroom. There is one incident of whatever was said, allegedly, by [Muñoz]. There was only one statement of that. Not two or three different times. There was one time. One time."
2. Analysis
"Defendants in criminal cases have a constitutional right to a unanimous jury verdict." (People v. Napoles (2002) 104 Cal.App.4th 108, 114.) When a defendant is charged with a single criminal act, but the evidence reveals more than one instance of the charged crime, either the prosecution must select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) If the prosecution does not make a selection, the court has a sua sponte duty to give an instruction along the lines of CALCRIM No. 3500, stating that the jury must unanimously agree upon the act or acts constituting the crime. (People v. Russo, supra, at p. 1132.) CALCRIM No. 3500 provides in pertinent part: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
The purpose of the unanimity instruction is to prevent a verdict that results from some jurors believing the defendant committed one act and others believing the defendant committed a different act, without agreement on what conduct constituted the offense. (People v. Washington (1990) 220 Cal.App.3d 912, 915-916.)
The court need not give a unanimity instruction "when the acts are so closely connected in time as to form a part of one transaction." (People v. Crandell (1988) 46 Cal.3d 833, 875, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Maury (2003) 30 Cal.4th 342, 423 [acts were so closely connected they formed part of one and the same transaction].)
Muñoz asserts a unanimity instruction was required because the witnesses differed in their recollection of what Muñoz said to Quezada. However, as the court properly found, there was only one threat. The fact the witnesses have different recollections of what exactly was said by Muñoz did not make a unanimity instruction necessary.
Further, even if Muñoz made more than one threat, the statements were made so closely in time that they formed part of the same transaction. They were intended to convey a singular message to Quezada: Muñoz was going to kill him.
B. Voluntary Intoxication Instruction
Muñoz contends the court erred in failing to instruct on voluntary intoxication as it would negate the specific intent element of the criminal threat charge. Muñoz also asserts defense counsel was ineffective in failing to request such an instruction. These contentions are unavailing.
Voluntary intoxication is commonly referred to as a defense to specific intent crimes. (See, e.g., People v. Medina (2007) 41 Cal.4th 685, 691 ["To support a defense of voluntary intoxication, defendant presented an expert witness."].) "Technically, however, it [h]as never [been] a defense." (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Further, the Legislature's "withdrawal of diminished capacity as a defense removes intoxication from the realm of defenses to crimes. Intoxication is now relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state." (Ibid.)
Further, while a trial court has a sua sponte duty to instruct on all defenses that are consistent with a defendant's theory of the case and that are supported by substantial evidence, a voluntary intoxication instruction is akin to a pinpoint instruction to which a defendant is entitled, if at all, only upon request. (People v. San Nicolas (2004) 34 Cal.4th 614, 670; People v. Saille, supra, 54 Cal.3d at p. 1119.) Thus, contrary to Muñoz's argument, the court was not required to instruct the jury sua sponte on voluntary intoxication. Because Muñoz did not request a voluntary intoxication instruction, this claimed error has been forfeited on appeal.
In addition, defense counsel did not render ineffective assistance of counsel by failing to request such an instruction, as it was not warranted by the facts. As discussed, ante, the only evidence at trial concerning Muñoz's intoxication was when police detained him five hours after the crime. No evidence was presented that he appeared to be or was intoxicated at the time of the criminal threat earlier in the day. Accordingly, counsel was not ineffective in failing to request an instruction on voluntary intoxication.
C. Attempted Criminal Threat Instruction
Muñoz asserts the court had a sua sponte duty to instruct the jury on the crime of attempted criminal threat as a lesser included offense of the crime of making a criminal threat because the evidence demonstrated he was not placed in sustained fear because of Muñoz's threat. We reject this contention.
A trial court has a sua sponte duty to "instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks (1998) 19 Cal.4th 108, 118.) In this context, substantial evidence is " ' " evidence from which a jury composed of reasonable [persons] could... conclude[]" ' that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Ibid.) A trial court need only instruct on lesser included offenses where the evidence is of such a nature that a question is raised as to whether all the elements of the charged offense are met, and there is evidence that justifies the conviction of the lesser offense. (People v. Torres (1996) 43 Cal.App.4th 1073, 1079, overruled on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3.) Failure to instruct on a lesser included offense requires reversal "only if, 'after an examination of the entire cause, including the evidence' [citation], it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (People v. Breverman, supra, at p. 178, fn. omitted.)
As noted, ante,one element of making a criminal threat is that the victim must be in actual fear and reasonably in fear as a result of the threat. (§ 422.) To prove a defendant committed a criminal threat, the prosecution must establish the threat actually caused the person threatened "to be in sustained fear for his or her own safety," and the threatened person's fear was "reasonabl[e]" under the circumstances. (§ 422; CALCRIM No. 1300; People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
The court was not obligated to instruct sua sponte on the lesser crime of attempted criminal threat as in this case there is no substantial evidence to support a conviction of only the lesser crime. As discussed, ante, the evidence demonstrated, both by Quezada's own testimony and the observation of a police officer responding to the scene, Quezada was in sustained fear,
Further, even if the trial court erred in failing to sua sponte instruct the jury on the lesser included offense of attempted criminal threat, reversal is not required because the error was harmless. Failure to instruct the jury on lesser included offenses in noncapital cases is subject to reversal only if an examination of the entire record establishes a reasonable probability the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165; People v. Watson (1956) 46 Cal.2d 818, 826.)
Because of the substantial evidence that Quezada was in sustained fear and that his fear was reasonable given Muñoz's actions in pointing a shotgun at him, there is no reasonable probability in this case that had the lesser included instruction been given, the jury would have found the victim's fear was unreasonable or minimal and convicted Muñoz of a lesser included offense.
D. Instruction on Failure To Timely Provide Discovery
Muñoz asserts the court erred in refusing to instruct the jury that the prosecution failed to timely disclose evidence that Campos told the prosecution's investigator the shotgun was loaded. This contention is unavailing.
1. Background
As discussed, ante, the prosecution wanted to show Campos a photograph of an opened shotgun, depicting shells in the gun. Defense counsel objected that there was no evidence the shotgun was loaded. The prosecutor responded that he would ask Campos if the gun was loaded, but did not know what his response would be as Campos had not given any statements as to whether the gun was loaded. The court allowed the prosecutor to use the photograph and to ask Campos if the gun was loaded or not.
When his testimony resumed, Campos testified the shotgun Muñoz showed him was loaded. There were two shells in the gun, similar to the picture the prosecutor showed him. On cross-examination by defense counsel Campos stated that he had told the prosecutor's investigator that Muñoz had opened the gun up and that it was loaded.
Later during trial defense counsel moved for a mistrial based upon the untimely disclosure of evidence that the shotgun was loaded. The court reminded defense counsel that before Campos's testimony regarding the shotgun the prosecutor stated that he did not know how Campos would answer the question regarding whether the gun was loaded. Defense counsel stated he found it incredible the prosecutor would not know the answer to that question. Defense counsel pointed to Campo's testimony that he told the prosecutor's investigator the gun was loaded, but that information was not contained in any report. The court denied the motion, finding any failure on the part of the prosecutor to disclose the evidence was at most negligent. Defense counsel asked for a limiting instruction, which the court denied. However, the court allowed defense counsel an Evidence Code section 402 hearing to question the investigator.
Evidence Code section 402, subdivision (b) provides that "[t]he court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury...."
At the Evidence Code section 402 hearing, Lobato testified he never asked, and Campos never said, whether the gun was loaded.
Prior to the jury being instructed, defense counsel asked that they be instructed under CALCRIM No. 306 on untimely disclosure of evidence. The court denied the request, finding the prosecutor did not know beforehand that Campos would testify the gun was loaded.
2. Analysis
Section 1054.1 provides in pertinent part: "The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶]... [¶] (c) All relevant real evidence seized or obtained as part of the investigation of the offenses charged. [¶]... [¶] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial...."
Section 1054.5, subdivision (b), states that as sanctions for failure to provide discovery, the trial court may order immediate disclosure, institute contempt proceedings, delay or prohibit the testimony of a witness, order a continuance of the proceedings, or advise the jury of the failure to disclose, or the untimely disclosure of, discoverable material. The trial court exercises its discretion in deciding on an appropriate remedy for failure to provide, or untimely delivery of, discovery in criminal cases. (People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.)
As detailed, ante, the court properly found there is no evidence the prosecutor improperly withheld information that Campos would testify the shotgun was loaded. The prosecutor told the court he did not know how Campos would testify on that issue. This was consistent with the investigator's testimony that he did not ask Campos, and Campos did not tell him, that the gun was loaded. Under these facts, the court properly refused to give the jury an instruction on a failure to timely disclose discovery.
E. Instruction on Flight
Muñoz asserts the court erred in instructing the jury on flight as consciousness of guilt. We reject this contention.
1. Forfeiture
Initially we observe that Muñoz has forfeited any claimed error by the court in instructing the jury on flight as he failed to object to that instruction at trial. Further, even if the issue had been adequately preserved for appeal, the court did not err in giving that instruction.
2. Merits
Section 1127c provides:
"In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
"An instruction on flight is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." (People v. Crandell, supra, 46 Cal.3d at p. 869.)
Consistent with section 1127c, the court instructed the jury on flight under CALCRIM No. 372, which provides:
"If the defendant fled at the time the crime was committed, that conduct may show he was aware of his guilt. If you conclude that the defendant fled, it's up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
Muñoz asserts the instruction on flight was not warranted in this case because he was dragged from the scene by his companion and did not leave of his own volition. However, this selective reliance on one part of the events surrounding the crime does not show it was error to instruct on flight.
As detailed, ante, Quezada told Muñoz he was calling the police. Instead of going to his home, Muñoz got into a pickup truck and drove off with his companion. The jury could infer, because he lived in an apartment in front of Quezada, he arrived with a pickup truck and companion for the purpose of fleeing after commission of the crime. Even though his companion initially grabbed him, Muñoz voluntarily left in the truck after pointing the gun at Quezada again from the truck. All of this evidence was sufficient to permit the court to instruct the jury on flight as consciousness of guilt.
Because we have concluded that there was no instructional error, we need not address Muñoz's contention that the cumulative effect of the court's errors in instructing the jury requires reversal of the judgment.
V. ALLEGED PROSECUTORIAL MISCONDUCT
Muñoz asserts the prosecutor committed misconduct during closing argument by (1) improperly commenting on the evidence, (2) misstating the facts, (3) misstating the law, (4) vouching for his witnesses, and (5) appealing to the jurors' emotions. We conclude (1) Muñoz forfeited the right to raise this issue by failing to object to the prosecutor's statements and request an admonition to cure any alleged harm, and (2) there was no misconduct.
A. Forfeiture
Generally, a defendant cannot raise a prosecutorial misconduct claim on appeal unless he first makes an assignment of misconduct at trial, stating the grounds, and on that basis requests the jury be admonished to disregard the impropriety. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "To determine whether an admonition would have been effective, we consider the statements in context." (People v. Edelbacher (1989) 47 Cal.3d 983, 1030.)
It is undisputed that during closing argument defense counsel did not object to the challenged arguments, request an assignment of misconduct or request an admonishment to the jury to disregard the allegedly improper argument. Nor does Muñoz claim on appeal that such objections or admonishments would have been ineffective to cure any possible prejudice. Accordingly, this assignment of error has been forfeited.
B. Merits
1. Applicable authority
" ' "A prosecutor's intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' " (People v. Samayoa, supra, 15 Cal.4th at p. 841.) "A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.) " ' "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Ayala (2000) 23 Cal.4th 225, 284.) " 'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.)
We will address the alleged improper arguments and comments by the prosecutor in order.
2. Comments on evidence
The parties are given wide latitude during closing argument. (People v. Thomas (1992) 2 Cal.4th 489, 526.) They may comment on reasonable inferences that may be drawn from the evidence. (People v. Morales (2001) 25 Cal.4th 34, 44.) Further, " ' " 'counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.' " ' " (People v. Hill, supra, 17 Cal.4th at p. 819.)
Muñoz first challenges the prosecutor's statement during closing argument that Campos testified Muñoz said, when showing him the gun, "I have my eye out for someone. Someone is giving me a problem. Look at this. Look at it. Look at it." This was a reference to the redirect examination of Campos, wherein the prosecutor clarified Campos's testimony regarding what Muñoz said to him when showing him the shotgun:
"[The prosecutor]: Mr. Campos, when the defendant was showing you the shotgun, did he tell you that he had his eye out for someone?
"[Campos]: Yes.
"[The prosecutor]: Did he say a lot of things about getting someone?
"[Campos]: He just said something that, he had his eye on somebody."
Thus, the first challenged comment was a fair comment on the evidence and inferences to be drawn therefrom. Campos did testify Muñoz said he had his "eye out for someone," and the statements, "Look at this. Look at it," were merely emphasizing how Muñoz was making him look at the gun.
The next challenged comment is the prosecutor's statement, "Mr. Campos knows what a gun looks like. It doesn't require an expert to see that." This again was a fair comment on the evidence and an explanation that there was no need for an expert to opine whether it was a real gun Muñoz possessed. Campos testified in detail concerning what the gun looked like, that he recognized it as a shotgun, and that "it looked real." The reasonable inference from Campos's testimony was that he knew from experience what a shotgun looked like and recognized the weapon Muñoz showed him as one.
Muñoz also objects to the prosecutor's statements that Quezada was a "big guy" who "can take care of himself" and that he had "seen a lot.... He knows what's going on. He lives in a tough neighborhood." This statement was made in context of the prosecutor discussing the fact that a police officer observed him minutes after the incident "shaking" and explaining "[h]e was in fear because he had a real gun pointed at him...." Muñoz also objects to the prosecutor then stating, "And he was still worried about it and nervous about it when he testified to you."
These were also fair comments on the evidence. The jury observed Quezada's size, saw his demeanor when he testified, and heard testimony concerning his neighborhood. This was proper argument explaining why a big guy from a tough neighborhood was so scared: He perceived the threat as real. The record also bears out the fact that Quezada was nervous about testifying. In fact, he stated that he was.
Muñoz asserts the prosecutor improperly commented that Muñoz's companion did not say it was only a toy gun when Quezada told him he was calling the police, but instead responded, "Please don't call the police. Don't call the cops. Come on, let's go." This was also a fair comment on the evidence. The prosecutor was referring to Quezada's testimony, "He left when I called the police. At that moment, his companion heard I was going to call the police and he signaled to, please don't. He hugged him and he pulled him towards his vehicle." Thus, the prosecutor was merely arguing that, if it was not a real gun, Muñoz's companion could have told Quezada as much and instead asked him not to call the police. The inference is that Muñoz's companion knew the gun was real and that they needed to leave.
3. Alleged misstatements of fact
Muñoz next contends the prosecutor made several misstatements of fact in closing argument. However, a review of the record shows the prosecutor's statements were supported by the evidence and the reasonable inferences that could be drawn from that evidence.
Muñoz first points to the prosecutor's statement telling the jury, "The witnesses have testified that [the weapon was] a double-barrel[ed] shotgun similar to [Exhibits 2 and 3] with wood, metal; the short pistol grip, approximately a foot long or so." This comment is amply supported by the evidence. Quezada described the gun as approximately one foot in length and having two barrels. He said when Muñoz pointed the shotgun at him, Quezada could see the barrels pointing at him. Campos testified that the gun Muñoz showed him looked like the gun in exhibit 2, the barrels were made of metal, and it appeared two have two barrels.
Muñoz claims the prosecutor made a misstatement of fact when he told the jury, "Mr. Campos saw that gun, he told you it was real. 'I saw it. Real.' " However, as detailed above, Campos did testify that when Muñoz showed him the gun, he believed it to be real.
Muñoz next asserts the prosecutor made a misstatement of fact when he told the jury it could consider "what [] the defendant [was] doing when he was making [] threats [to Quezada]. And, ladies and gentlemen, he was pointing a weapon at the victim." This statement is supported by the evidence. As described in detail, ante, Muñoz was pointing the shotgun at Quezada when he threatened to kill him. Muñoz's assertion the threat and the pointing of the gun happened at different times is merely an attempt to reargue an issue the jury resolved against him.
Muñoz asserts the "most blatant misstatement" was the prosecutor telling the jury the threat was Muñoz saying, "I'm going to kill you." However, that statement was an accurate paraphrase of what the threat conveyed to Quezada. Further, when the prosecutor asked "did the defendant specifically tell you that he was going to kill you", Quezada responded, "Yes." Thus, there was no misstatement of fact concerning the threat made by Muñoz to Quezada.
Finally, Muñoz contends the prosecutor misstated the facts when he argued, to explain Ivan's inconsistencies in his description of the gun, "[i]t's probably the first time he had a weapon pointed in his direction...." This was proper argument explaining why Ivan, who was 17 years old at the time of the crime, might give inconsistent descriptions of the gun.
4. Alleged misstatements of law
Muñoz asserts the prosecutor made several misstatements of law in his closing argument. This contention is unavailing.
Muñoz asserts the prosecutor minimized the facts to be proved on count 2, stating the prosecutor told the jury he only had to show "the threatening posture and statements of the defendant" and that "no specificity [was] required" as to the threat. However, Muñoz takes the prosecutor's statements out of context. Rather, the prosecutor explained in detail each element of the criminal threat charge and the facts that must be proven to convict on that crime.
Muñoz also contends the prosecutor minimized the elements of the count 3 felon in possession of a firearm charge, pointing to the prosecutor's statement, "You just have to find that whatever that object was was a firearm that was designed, at least, or appears capable of shooting." Muñoz asserts the phrase "appears capable of shooting" could have led the jury to believe that a toy or replica of a gun was sufficient. However, the prosecutor clearly told the jury they needed to find the firearm was real and that this reference was merely to the fact that it need not actually have been loaded or operable.
Last, Muñoz asserts the prosecutor minimized the elements of the count 4 resisting an officer offense, by failing to discuss the effect of Muñoz's intoxication on that charge. However, if Muñoz believed his intoxication negated an element of that offense it was up to his counsel to argue that fact.
5. Alleged "vouching" for witness and appealing to emotions of jurors
Citing a discussion by the prosecutor of the initial evasiveness of Campos and the alleged intimidation of that witness, Muñoz asserts the prosecutor improperly vouched for Campos, stating, "He told you the truth." This contention is unavailing.
That statement was made in the context of the prosecutor explaining his initial denial to police the night of Muñoz's arrest that he saw anything, and his evasive and inconsistent statements at trial. The prosecutor explained the intimidation by Muñoz's wife and was merely arguing to the jury that when he finally admitted at trial that he saw Muñoz point the shotgun at Quezada, that version was the truth. Thus, the prosecutor made a proper comment upon the fact the jury was given the necessary context to evaluate Campos's credibility. It was not reasonably probable the jury understood the statement to mean the prosecutor had personal knowledge of Campos's truthfulness and therefore was not improper "vouching" for his witness. (See People v. Frye (1998)18 Cal.4th 894, 971 ["so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based upon 'facts of [the] record and the inference reasonably drawn therefrom, rather than any purported personal knowledge or belief,' [the] comments cannot be considered improper vouching"].)
Further, the prosecutor did not improperly appeal to the passions of the jury. The statement Muñoz complains of is the following:
"How many times do you see on the news about these shootings and these horrible crimes that happen in these neighborhoods, and the police are asking people to come forward; or all the sudden doors slam, and the lights turn off, no one wants to help. [¶] These are tough times, ladies and gentlemen. It's a tough neighborhood. People don't want to be labeled as snitches or tattletales or friendly with the police officers. They don't know what's going to happen in these cases. Mr. Campos doesn't know what's going to happen in this case. He doesn't know if he just stuck his neck out to testify and tell the truth, and if the defendant's going to have to answer to it. For all he knows, the defendant could be walking home. He has to think about these things. 'I could go out there and testify against him, he walks, goes free. Now where am I at? I'm now alone in my house with my family with a guy who I just testified against. What is he going to do?' [¶] But he still comes up here and, ladies and gentlemen, tells you the truth."
Those comments were proper as they were an explanation for Campos's inconsistencies and hesitancy in testifying, given the intimidation to which he was subjected and the realities of the dangers facing witnesses in such cases.
DISPOSITION
The judgment is affirmed. In light of inconsistencies in the record, the matter is remanded to the trial court to determine defendant's true name and, if necesssary, to correct the abstract of judgment in that regard.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.